CCR Urges Judge to Grant Access to Manning Court-Marshal

Today, the Center for Constitutional Rights asked David E. Coombs, Esq., attorney for accused Wikileaks leaker Bradley Manning, to forward to Chief Judge Lind CCR's request for public access to the hearings, in accordance with the right of public access protected by the First Amendment.

The Center for Constitutional Rights (CCR) represents the Wikileaks media organization and its publisher Julian Assange regarding access to the court-martial proceedings in United States v. Bradley Manning at Fort Meade, Maryland. We are also making this request for access on behalf of the Center for Constitutional Rights, a non-profit legal and educational organization. We ask that you forward copies of this letter to Chief Judge Lind and counsel for the prosecution in advance of the hearings commencing April 24, 2012.

By letter to Chief Judge Lind dated March 21, 2012, CCR requested public access to documents and information filed in this case, including the docket sheet, all motions and responses thereto, all rulings and orders, and verbatim transcripts or other recordings of all conferences and hearings before the Court. We have received no response to our letter, and, with the exception of certain redacted defense motions recently published on your website, continue to be denied access to the requested materials without legal justification or other explanation.

Accordingly, in order to avoid any confusion and ensure that we have exhausted efforts to obtain meaningful, timely access to documents and information filed in this case without further litigation, we now renew our request for public access to these materials, including without limitation the following items referenced in open court during the arraignment and motions hearings on February 23, March 15, 16 2012:

All orders issued by the Court, including the case management order, pretrial publicity order, protective order regarding classified information, and other protective orders;

The government’s motion papers and responses to the redacted defense motions; and

Authenticated transcripts of all proceedings, including in particular transcripts of open court sessions, at the same time and in the same form they are provided to counsel for the parties.

This request includes timely public access to all documents and information filed subsequent to the March 16 hearing and all such documents and information filed in the future. These should be provided when filed.

We further request that the Court require all conferences held pursuant to R.C.M. 802 be held in open court and be made part of the record in this case, to the extent they involve substantive matters, and regardless of whether the parties agree to have those substantive matters discussed and decided off the record. Moreover, we request that all Rule 802 conferences which have already occurred be reconstituted in open court.

To the extent these requests are denied (or not decided) we request an explanation for the purported factual and legal basis for such result. We expect an immediate decision as the loss of First Amendment rights in this context “for even minimal periods of time” constitutes irreparable harm. Elrod v. Burns, 427 U.S. 347, 373 (1976) (citing New York Times Co. v. United States, 403 U.S. 713 (1971)).

As you are aware, the First Amendment to the Constitution and the federal common law guarantee a right of public access to criminal proceedings, including courts-martial, except in limited circumstances. SeeGlobe Newspaper Co. v. Superior Court, 457 U.S. 596, 606 (1982); Nixon v. Warner Commc’ns, Inc., 435 U.S. 589, 597 (1978). In particular, “[t]he First Amendment guarantees the press and the public a general right of access to court proceedings and court documents unless there are compelling reasons demonstrating why it cannot be observed.” Washington Post Co. v. Robinson, 935 F.2d 282, 287 (D.C. Cir. 1991) (emphasis added) (citing cases); see alsoIn re Washington Post Co., 807 F.2d 383, 390-91 (4th Cir. 1986) (same). Access may only be denied where the government establishes that closure is necessary to further a compelling government interest and narrowly tailored to serve that interest, and the court makes specific findings on the record supporting the closure to aid review. See Press-Enterprise Co. v. Superior Court, 464 U.S. 501 (1984). Any motion or request to seal a document or otherwise not disclose a document to the public must be “docketed reasonably in advance of [its] disposition so as to give the public and press an opportunity to intervene and present their objections to the court.” In re Washington Post Co., 807 F.2d 383, 390-91 (4th Cir. 1986) (quoting In re Knight Publishing Co., 743 F2d 231, 234 (4th Cir. 1984)).

Indeed, it is reversible error for a court to withhold from the public each and every document filed, subject to further review and disclosure, because such procedures “impermissibly reverse the ‘presumption of openness’ that characterizes criminal proceedings ‘under our system of justice.” Associated Press v. District Court, 705 F.2d 1143, 1147 (9th Cir. 1983) (quoting Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 573 (1980)). It is “irrelevant” that some of the pretrial documents might only be withheld for a short time. Id.

The Court’s authority to grant CCR’s requests for public access pursuant to the All Writs Act, 28 U.S.C. § 1651(a), is equally clear and indisputable. See, e.g., Denver Post Co. v. United States, Army Misc. 20041215 (A.C.C.A. 2005), available at 2005 CCA LEXIS 550 (exercising jurisdiction and granting writ of mandamus to allow public access); see alsoABC, Inc. v. Powell, 47 M.J. 363, 365 (C.A.A.F. 1997), available at 1997 CAAF LEXIS 74. This is particularly true given the Supreme Court’s repeated conclusions that openness has a positive effect on the truth-determining function of proceedings and can affect outcome. See Gannett Co. v. DePasquale, 443 U.S. 368, 383 (1979) (“Openness in court proceedings may improve the quality of testimony, induce unknown witnesses to come forward with relevant testimony, cause all trial participants to perform their duties more conscientiously”); Richmond Newspapers, 448 U.S. at 596 (open trials promote “true and accurate fact-finding”) (Brennan, J., concurring); Globe Newspaper, 457 U.S. at 606 (“[P]ublic scrutiny enhances the quality and safeguards the integrity of the factfinding process.”).

Finally, senior CCR attorney Shayana Kadidal will attend the hearing in this case on April 24, 2012. We request that he be afforded the opportunity to address the Court directly and present arguments concerning our requests for public access to documents and information filed in this case.

If you, the prosecution or the Court have any questions concerning request, please do not hesitate to contact Mr. Kadidal at (212) 614-6438, shanek@ccrjustice.org, or Michael Ratner at (917) 916-4554.

Very truly yours,
Michael Ratner
Wells Dixon
Shayana Kadidal

Counsel for Wikileaks & Julian Assange

The Center for Constitutional Rights is dedicated to advancing and protecting the rights guaranteed by the United States Constitution and the Universal Declaration of Human Rights. Founded in 1966 by attorneys who represented civil rights movements in the South, CCR is a non-profit legal and educational organization committed to the creative use of law as a positive force for social change.